IP and Copyright: Who Owns What ChatGPT Writes? By Lexton Garrett
With the recent rise of artificial intelligence technologies and the apparent omnipresence of ChatGPT, many questions regarding ownership have emerged like, who owns what ChatGPT writes? And perhaps more importantly: Is what ChatGPT writes copyrightable?
The ownership question has quite a simple answer: The user owns ChatGPT’s output. OpenAI’s terms of use specify that the user owns whatever ChatGPT writes, so long as ownership is permitted by law. But owning ChatGPT’s output does not necessarily mean that the user holds copyright in the output. In March 2023, the United States Copyright Office (“USCO”) reiterated its longstanding position that human authorship is essential for copyright protection in the United States and that if a work contains more than an insignificant amount of AI-generated material, an applicant should (1) disclose that information and (2) explain the human author’s contribution to the work. Given the fact that ChatGPT can generate the same answer for multiple people, the “human authorship” requirement makes sense. Otherwise, in theory, multiple people could hold copyrights in the exact same work.
While wholly AI-generated materials cannot receive copyright protection, works that merely use AI to assist the human author in the creative process likely are eligible for copyright protection. The USCO differentiates between using AI solely as a tool to assist a human author in creating a work versus AI operating as a substitute for human creativity. Ultimately, whether AI-generated questions or instructions (commonly referred to as “prompts”) can receive copyright protection depends on the facts of a specific case. However, according to the USCO, AI-generated prompts by themselves (even the highly detailed ones) are insufficient to provide copyright protection to the AI-assisted work.
Because the copyrightability of AI is a rapidly developing area of law, any of the above requirements are subject to change. As AI continues to develop, the legal structures impacting copyrightability will have to maintain pace and adapt to AI-generated changes.
